Opinion
March 10, 1959.
PRESENT: Condon, C.J., Roberts, Paolino, Powers and Frost, JJ.
1. SUPREME COURT. Advisory Opinions. Basis for Request. Pending Cases. Where basic questions propounded by governor were directly or indirectly involved in litigation pending in superior court, Held, that supreme court would, in accordance with previous decisions, refrain from giving opinion. R.I. const., art. XII, § 2, of amendments.
2. COURTS. Supreme Court. Advisory Opinions. Litigation Pending. Where basic questions contained in request of governor for an opinion were involved in litigation pending before courts of state, Held, that grave difficulties could follow if supreme court were to give a purely advisory opinion upon such questions, only to be confronted later with the necessity of deciding the same questions after a hearing, upon review or otherwise, in the litigated case and, in such event, the defendant conceivably might have some ground to complain that his legal and constitutional rights had been unnecessarily prejudiced by court having reached a considered opinion, even though only advisory, upon a material question of law which court knew to have been involved in the pending litigation, without first having afforded the parties a full hearing in accordance with appropriate procedure set out in statutes.
3. CONSTITUTIONAL LAW. Supreme Court. Advisory Opinion. Effect of Opinion. An advisory opinion does not constitute a decision by supreme court and does not finally determine the question involved in request for an opinion and has no binding effect upon any person whose legal rights might be involved. R.I. const., art. XII, § 2, of amendments.
4. CONSTITUTIONAL LAW. Request for Advisory Opinion. Mandate of Constitution. Provisions of state constitution giving rise to advisory opinion by supreme court is not a mandate to require court to give such an opinion under any and all circumstances as, for example, on a question of law which is involved materially in the conviction of an accused in a pending criminal case. R.I. const., art. XII, § 2, of amendments.
5. COURTS. Advisory Opinion. Pending Litigation. Certification by Lower Court. Governor requested opinion of supreme court relative to authority of registrar of motor vehicles to revoke or suspend the license of the operator of a motor vehicle under certain statutory provisions and, after inquiry by the court, it appeared that equity actions were pending in the superior court wherein the basic questions asked by the governor were directly or indirectly involved. Held, that if governor considered questions propounded to the court to be of such pressing public interest and importance that they should be decided without necessity of awaiting the outcome of pending litigation, statute provided that attorney general might obtain the certification of such questions by superior court for determination in supreme court and, in such case, court would have the benefit of briefs and arguments by adversary counsel and determination would not be a mere advisory opinion but a binding decision having force and effect of law. G.L. 1956, §§ 31-11-15, 17, 18, 21 and 25; § 9-24-27; R.I. const., art. XII, § 2, of amendments.
REQUEST FOR OPINION on certain question of law filed by Governor in supreme court. Court respectfully declined to answer question because of pending litigation which could be prejudiced by answers and suggested method by which questions might be certified in advance of trial of equity suits pending in superior court, governor to be represented, if desired, by amicus curiae.
March 10, 1959
To His Excellency, Christopher Del Sesto Governor of the State of Rhode Island and Providence Plantations
Pursuant to the provisions of section 2 of article XII of amendments to the constitution of this state, Your Excellency has requested our written opinion on certain questions of law. Such questions involve the scope of the authority of the registrar of motor vehicles to revoke or suspend the license of the operator of a motor vehicle under the provisions of general laws 1956, §§ 31-11-15, 17, 18, 21 and 25.
Upon receiving your request and after examining the language of those sections we learned that the basic questions, if not all the subsidiary ones, propounded by Your Excellency were directly or indirectly involved in litigation now pending in the superior court. Accordingly we made inquiry of the clerk of that court with reference to the identity and status of such litigation. We were advised by letter of February 26, 1959 that the following causes were "filed and commenced in the Superior Court by the issuance of ex-parte restraining order under Sec. 31-11-15-17-18-21 and 25 G.L. 1956 * * *:
"Equity No. 27291 entitled Peter St. Lawrence vs. Romeo D. Asselin, Registrar Filed Feb. 9, 1959
"Equity No. 27303 entitled Carl G. Romblad vs. Romeo D. Asselin, Registrar Filed Feb. 16, 1959
"Equity No. 27315 entitled Joseph E. McCaughey vs. Romeo D. Asselin, Registrar Filed Feb. 21, 1959
"Equity No. 27319 entitled Richard L. Merritt, Jr. vs Romeo D. Asselin, Registrar Filed Feb. 25, 1959."
In such circumstances it has been the practice of the judges of this court over the years to refrain from giving their opinion in response to requests under section 2, article XII of amendments to the constitution. On April 17, 1942 we so advised Governor J. Howard McGrath. And again on November 6, 1945 we reiterated that view in response to a request of Governor John O. Pastore. We are aware of no instance in which this court has ever adopted a contrary view. Moreover we believe it to be the opinion generally entertained by the courts of other states having a constitutional provision similar to ours. In any event we have always deemed it a sound view and on occasion have gone to some length in giving reasons why we thought so. A repetition of some of those reasons in the present instance may be helpful.
In the opinion to Governor Pastore we "pointed out that grave difficulties could follow if we were to give a purely advisory opinion upon the proposed question, only to be confronted later with the necessity of deciding the same question after a hearing, upon review or otherwise, in the litigated case. In such event, the defendant conceivably might have some ground to complain that his legal and constitutional rights had been unnecessarily prejudiced by our having reached a considered opinion, even though only advisory, upon a material question of law which we knew to have been involved in his conviction, without first having afforded him a full hearing in accordance with the appropriate procedure set out in the statutes."
We further called to his attention the fact "that an advisory opinion would not constitute a decision of this court, would not finally determine the question, and would have no binding effect upon any person whose legal rights might be involved. On the other hand, a final decision and determination of the question would result if it were properly brought before us in a litigated case."
We concluded by expressing the following opinion on the constitutional provision: "When requested to give an advisory opinion, in accordance with section 2 of article XII of the articles of amendment to the constitution of this state, we are reluctant to decline to do so. But, in view of the facts and possible consequences to which we have adverted, we are constrained to conclude that it was not intended by that constitutional provision, in the absence of more extreme conditions than now appear, to require the justices to give an advisory opinion on a question of law which is involved materially in the conviction of an accused in a pending criminal case."
We reaffirm that opinion. While the cases now in litigation are not criminal cases we think the reasons given above for not answering the question propounded by Governor Pastore are equally applicable to any civil case or proceeding actively in course of litigation as are the equity suits hereinbefore mentioned. We must therefore, although reluctantly, respectfully decline to express any opinion at this time on the questions propounded by Your Excellency.
However, if Your Excellency deems those questions of such pressing public interest and importance that they should be decided without the necessity of awaiting the outcome of the above-mentioned litigation, there is a method provided by statute by which they may be brought to this court for decision in advance of the trial of those equity suits in the superior court. Under G.L. 1956, § 9-24-27, the attorney general may obtain the certification of such questions for our determination. In that case we would have the benefit of briefs and arguments by adversary counsel and our determination would not be a mere advisory opinion but a binding decision having the force and effect of law.
If Your Excellency requests and receives the co-operation of the attorney general in this respect and Your Excellency thereafter desires to be represented by special counsel at the hearing in this court, we shall be pleased to allow such counsel to appear amicus curiae and file a brief and, if he deems it necessary, argue orally in support thereof, although ordinarily it is not our practice to grant the latter privilege to amicus curiae.
FRANCIS B. CONDON THOMAS H. ROBERTS THOMAS J. PAOLINO WILLIAM E. POWERS G. FREDERICK FROST